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US v. Christie UNITED STATES COURT OF APPEALS 1 FOR THE SECOND CIRCUIT 2 3 August Term, 201 3 4 5 (Argued: October 9
, 2013 Decided: N ovember 15, 2013 ) 6 7 8 Docket No. 13

- 245

- cr 9 10

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 11 12 U NITED S TATES OF A MERICA , 13 14 Appellee , 15 16

v. 17 18 N ERON C HRISTIE , AKA C OUNTRY , 19 20 Defendant

- Appellant , 21 22 A VA B RIGHT , A LPHONSO N ELSON , 23 24 Defendants. 25 26

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x 27 28 Before: L YNCH , C HIN , and D RONEY , Circuit Judges 29 30 31 Defendant moved for a reduction in his sentence based on a Sentencing 32 Guidelines range that was lowered by the Sentencing Commission
, but the 33 district court denied his motion . We hold that the district court failed to provide 34 an explanation of its decision sufficient to permit meaningful appellate review

. 35 Accordingly, we VACATE the order of the district court and REMAND for 36 further proceedings

. 37 382 J OHN W. B REWER , Storch Amini &

1 Munves PC , New York, NY , for 2 Appellant

. 3 4 E DWARD A. I MPERATORE , Assistant 5 United States Attorney, ( Justin S. 6 Weddle , Assistant United States 7 Attorney, on the brief )
, f or Preet 8 Bharara, United States Attorne y for 9 the Southern District of New York, 10 New York, NY, for Appellee

. 11 12 D RONEY , Circuit Judge : 13
Neron Christie (“Christie”) appeals from an order of the United States District 14
Court for the Southern District of New York (Jones, J .) , entered January 4, 2013, 15
denying Christie’s motion for a sentence reduction pursuant to 18 U.S.C. § 16
3582(c)(2). Because the district court did not provide a sufficient explanation of 17

its decision not to reduce Christie’s sentence despite his eligibility for such a 18

reduction, we vacate the district court’s order and remand for furt her 19
proceedings consistent with this opinion. 20

BACKGROUND 21

In 2002 and 2003, N eron Christie participated in conspiracies to distribute 22
cocaine base (“crack cocaine ” ) in the New York City area. Christie also sold 23
several firearms, including a 12

- gauge shotgun, an Intratec Tec

- 9 semiautomati c 24
pistol
, and a .40 caliber pistol. 253

On September 15, 2003, Christie pled guilty to drug offenses under 21 U.S.C. 1

§§ 841(a) (1), (b)(1)(A) and 846, as well as firearms offen ses under 18 U.S.C. § 2
922(a)(1) (A) and (g). In t he written plea agreement
, Christie stipulated to an 3
applicable drug quantity of at least 150 grams but less than 500 grams of cocaine 4

base, and a base offense level of 34 pursuant to U

. S

. S

. G

. § 2D1.1(c)(3). The 5
parties also stipulated to a “grouping analysis” under U

. S

. S

. G

. § 3D1.4 and a 6

three

- level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. T he 7
parties agreed that Christie’s adjusted offense level was 31 and that he belonged 8
in Criminal History Category V. This yielded an advisory range of 168 to 210 9
months’ imprisonment under the United States Sentencing Guidelines (the 10
“Guidelines”)

. The Pre

- S entence Report subsequently prepared by the Probation 11
Office largely tracked the parties’ Guidelines calculation in the plea agreement
, 12
except that it concluded that Christie belong ed in Criminal History Category VI

. 13

On March 12, 2004, United States District Judge Barbara Jones sentenced 14
Christie to 168 months’ imprisonment
, to be followed by 60 months’ supervised 15

release

. The statement of reasons in the judgment reported that the court 16
“adopt[ed] the factual finding [s] and guideline application in the presentence 17
report except . . . [that] the court has determined that a criminal history category 184

of V (rather than VI) is appropriate .” Christie’s sentence of 168 months thus was 1
at the bottom of his Guidelines range of 1 68 to 210 months. 2
On November 10, 2008, Christie filed a motion pursuant to 18 U.S.C. § 3
3582(c)(2) to have his sentence reduced in light of the 2007 A mendment s to the 4
Sentencing Guidelines that lowered the penalties applicable to crack cocaine 5

offenses. On April 8, 2010, the district court granted Christie’s motion and 6
reduced his sentence to 151 months’ imprisonment, which again represented the 7

low end of his new Guidelines range of 151

- 188 months

. 8
On January 30, 2012, Christie filed a second motion un der § 3582(c)(2) for a 9

further sentence reduction in light of the 2011 Amendments to the Sentencing 10

Guidelines lowering the penalties for crack cocaine offenses. In a letter to the 11

district court, defense counsel urged the court to reduce Christie ’ s sentence to a 12

term of 120 months ’ imprisonment. The letter relied heavily on a memorandum 13

dated November 29, 2011 from the Probation Office to the district court (the 14

“2011 Probation Memo ”), which found Christie to be eligible for a sentence 15

reduction bas ed on his new amended Guidelines range of 120

- 150 months

. In 16
reaching this conclusion , the 2011 Probation Memo noted that the drug weight 17

involved in Christie’s offense
, i.e. 150

- 500 grams of cocaine base
, straddled three 18

offense levels under the amended Guidelines, but “the lowest level was 195

applied.” 1 Thus, the 2011 Probation Memo found that Christie’s base offense 1

level was 28, which was the level applicable to offenses involving 112

- 196 grams 2

of cocaine base under the 2011 Amendments

. See U.S.S.G. § 2D1.1(c)(6)

. After 3
two levels were added under the “grouping analysis” of § 3D1.4 and three level s 4

were subtracted for acceptance of responsibility under § 3E1.1 , the 2011 5

Probation Memo concluded that Chris tie’s new adjusted offense level was 27. 6

W ith a criminal history category of V, this yielded an amended Guidelines range 7

of 120

- 150 months. Defense counsel’s letter argued that a sentence at the low end 8
of this range was appropriate in light of
, inter alia , Christie’s post

- sentencing 9

conduct and his prior sentences at the bottom of the then

- applicable Guidelines 10

ranges

. 11
The Government submitted a letter to the district court on February 14, 2012
, 12
conceding that
, under “the amended Guidelines, the defe ndant ’ s total offense 13
level is 27, resulting in an app licable Guidelines range of 120 to 150 months ’ 14
imprisonment.” Despite agreeing that “the Court has the discretion to reduce the 15
defendant’s sentence,” the Government argued that the district court shou ld 16

1 The letter submitted by defense counsel also relied on the specific factual findings in the 2003 Pre

- S entence Report in asserting that the total weight of cocaine base involved in Christie’s offense was 184 grams.6

decline to reduce Christie’s sentence because of his firearms offenses and 1
extensive criminal history. 2 2
On January 4, 2013, almost a year after Christie filed his motion for a sentence 3

reduction, the district court entered an order denying the motion

. The order, 4
which consisted of the first page of a two

- page form formerly available through 5
the Administrative Office of the United States Courts (“Form AO 247” )
, 6

contained no case

- specific content beyond the notation that the motion was 7
denied. The pre

- pri nted text included boilerplate language stating that the court 8
had considered the defendant’s motion under 18 U.S.C. § 3582(c)(2) , and that the 9
court had “tak[en] into account the policy statement set forth at U.S.S.G. § 1B1.10 10
and the sentencing factors s et forth in 18 U.S.C. § 3553(a).” The court 11
electronically checked a box marked “denied” below that language without 12
adding a note indicating why. Although the form provided space for an 13
explanation

— page one contained about half a page of empty space befo re a set 14

of blanks for the date and a judge’s signature, and page two provided additional 15

room for comments on the sentence imposed

— the court wrote nothing

. Christie 16
appealed from the cou rt’s order on January 7, 2013. 17

2 Christie’s counsel submitted a letter to the court on May 9, 2012, explaining that because of the “good time credit” he had accumulated in prison, any sentence of 123 months or less (as of that date) would have entitled him to immediate release. A simila r letter submitted on October 4, 2012, explained that any sentence of 127 months or less (as of that date) would entitle him to immediate release.7 DISCUSSION 1
Although district court s generally may not modify a term of imprisonment 2
once it has been imposed, if the defendant “has been sentenced to a term of 3
imprisonment based on a sentencing range that has subsequently been lowered 4
by the Sentencing Commission pursuant to 28 U.S.C. 994( o), . . . the court may 5
reduce the term of imprisonment, after considering the factors set forth in section 6
3553(a) to the extent that they are applicable, if such a reduction is consistent 7
with applicable policy statements issued by the Sentencing Commiss ion.” 18 8
U.S.C. § 3582(c)(2). The Supreme Court has set forth a “two

- step inquiry” for 9
resolving motions pursuant to § 3582(c)(2) for a sentence reduction

. Dillon v. 10

United States , 130 S. Ct. 2683, 2691 (2010); see also United States v. Bethea , No. 12

- 11

9 61, slip op. at 3 (2d Cir. Oct. 31, 2013) (per curiam)

. First, the district court must 12
determine whether the defendant in question is “ eligible for a reduction in 13
sentence,” which requires that such a “reduction would be consistent with 14
applicable policy statements issued by the Sentencing Commission

— namely, § 15

1B1.10.” United States v. Mock , 612 F.3d 133, 137 (2d Cir. 2010) (emphasis in 16
original ; internal quotation marks omitted). “If, and only if, a defendant is 17
eligible for a reduction in sentence under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 18
1B1.10, then the second step of the analytical framework set forth in Dillon 198

requires the district court to consider any applicable § 3553(a) factors and 1
determine whether, in its discretion, the reduction authorized by reference to the 2
policies relevant at step one is warranted in whole or in part under the particular 3

circumstances of the case.” Id

. (inter nal quotation marks omitted). 4
When the issue on appeal is whether a defendant is “eligible for a reduction 5
in sentence under the crack cocaine amendments, pursuant to section 6
3582(c)(2)[,] [w]e review de novo the determination of whether [the defendant’s] 7
sentence was ‘based on a sentencing range that was subsequently lowered by the 8
Sentencing Commission,’ because this determination is a matter of statutory 9
interpretation.” United States v. Main , 579 F.3d 200, 202

- 03 (2d Cir. 2009). When a 10
defendant is eligible for resentencing, “we review a district court’s decision to 11
deny a motion under 18 U.S.C. § 3582(c)(2) for abuse of discretion.” United States 12

v. Borden , 564 F.3d 100, 104 (2d Cir. 2009). 13

In its submissions to the district co urt, the Government conceded that Christie 14

was eligible to be resentenced and expressly agreed that he had an amended 15
Guidelines range of 120

- 150 months’ imprisonment. The Probation Office 16
likewise concluded that Christie was eligible for a reduction. T h e Government 17

does not contest Christie’s eligibility for a reduction on appeal. We have 18
previously noted that “[i]n general, we are entitled to assume that the sentencing 199

judge understood all t he available sentencing options. ” United States v. Sanchez , 1
517 F.3d 651, 665 (2d Cir. 2008) (internal quotation marks omitted) . Thus, 2
although the district court’s order does not explicitly state that Christie was 3
eligible for a reduced sentence, we may presume that the court below recognized 4
Christie’s eligibili ty for a reduced sentence
, and then proceeded
, in an exercise of 5

its discretion
, to decline to lower Christie’s sentence

. 3 6

The district court provided no explanation as to why it declined to reduce 7

Christie’s sentence

. While the form used by the district court in this case 8
provides space for an explanation of the decision, the district court did not utilize 9
that space, and no other oral or written explanation was given. Christie’s 10
primary argument on appeal thus is that the district court’s decision must be 11
vacated because the lack of reasoning in the court’s order prevents this Court 12
from exercising “meaningful appellate review.” We agree. As we have 13
explained while considering a reasonableness challenge to a defendant’s 14
sentence on direct appeal, “an a dequate explanation is a precondition for 15
‘meaningful appellate review.’” United States v. Cavera , 550 F.3d 180 , 193 (2d Cir. 16
2008) (en banc). “ We cannot uphold a discretionary decision unless we have 17

3 Although we are “wary of making such an assumption where the judge’s sentencing remarks create ambiguity as to whether the judge correctly understood an available sentencing option,” Sanchez , 517 F.3d at 665 (internal quotation marks and alteration omitted) , we find no such ambiguity here as to whether the district court believed Christie to be e ligible for a r educed
sentence.10

confidence that the district court exercised its disc retion and did so on the basis 1

of reasons that survive our limited review. Without a sufficient explanation of 2
how the court below reached the result it did, appellate review

. . . m ay well be 3
impossible.” Id

. 4

We are mindful that Cavera dealt with an initial sentencing proceeding, and 5
that § 3582(c)(2) does not entail a “plenary resentencing proceeding,” Dillon , 130 6

S. Ct. at 2691, and thus is not subject to all of the procedural requirements that 7
apply at sentencing. See also U.S.S.G. § 1B1.10(a)(3) (“proceedings under 18 8
U.S.C. § 3582(c)(2) and this policy statement do not constitute a full resentencing 9
of the defendant”). Nevertheless, what we said in Cavera about the need for at 10
least some statement of reasons is fully applicable in the context of a motion for a 11
sentence reduction. Like the initial sentencing decision, resolution of a sentence 12
reduction motion is a discretionary decision regarding the defendant ’ s 13
fundamental liberty interests, which is subject to appellate review. As with an 14

initial sentence, we ordinarily will not be able to determine whether the district 15

court’s exercise of discretion was reasonable without an indication of the reason 16

the discretion was exercised as it was. 17

The Government responds that appellate review may occur because the 18

district court’s reasoning can be inferred from the record. T he Government relies 1911

chiefly on this Court’s decision in United States v. Fernandez , which noted that a 1
“court’s reasoning can often be inferred by comparing what wa s argued by the 2
parties or contained in the pre

- sentence report with what the judge did.” 443 3
F.3d 19, 29 (2d Cir. 2006) (quoting United States v. Jimenez

- Beltre , 440 F.3d 514, 519 4
(1st Cir. 2006) (en banc) ). 5

Fernandez , however, is clearly distinguishable. In that case, which concerned 6
an initial sentencing, the district court amply explained the basis for its sentence. 7

443 F.3d at 24

- 25. The defendant nevertheless argued that because the district 8

court failed to sta te that it considered one of the defendant’s many arguments at 9
sentencing, it had not adequately discharged its duty to consider the statutory 10
sentencing factors. Id . at 28

- 32. Fernandez did not confront a challenge to a 11
sentencing decision for which the district court provided no explanation 12

whatsoever. While Fernandez noted that “we will not conclude that a district 13
judge shirked her obligation to consider the § 3553(a) factors simply because she 14
did not discuss each one individually or . . . address e very argument relating to 15

those factors,” id . at 30, this does not relieve the district court of its obligation to 16
provide, at a minimum, enough explanation of how it exercised its sentencing 17
discretion to permit meaningful appellate review. The explanati on required 18
need not be lengthy . But absent some indication of the rationale for the ruling, 1912

we are precluded from conducting meaningful appellate review. Cavera , 550 1

F.3d at 193. 2
The failure to state reasons will not always require a remand. In some 3
situations, such a failure may be harmless, because, as the government suggests 4
is the case here, the reasons for the district court’s actions may be obvious from 5
the history of the case. This was the case, e.g. , in United States v. Batista , 480 F. 6
App’x 639 (2d Cir. 2012) (summary order)

. T here, in granting a sentence 7

reduction, the district court’s “rationale for its exercise of discretion [was] 8
apparent from the record” because the “reduction of [ the defendant’s] term of 9
imprisonment to a term 31.5% be low the low end of the 235

– to

– 293

– month 10
amended Guidelines range [was] comparable to the 31.5% downward variance 11
the district court gave [ the defendant] in sentencing him below the 292

– to

– 365

– 12

month Guidelines range applicable at sentencing.” Id . at 641

- 42

. 13

Here , however, the reasons for the district court’s exercise of discretion are 14
not apparent from the record. The Government’s sentencing memorandum 15
contained a number of arguments against reducing Christie’s sentence (including 16
his prior criminal history and his firearms offenses), and there is no way to 17

determine which of these

— or other

— reasons the district court relied on in 18
reaching its determination that the pre

- existing 151 month term was the 1913

appropriate sentence for Christie

. The basis for the district court’s decision is 1
especially unclear because Christie’s sentence of 151 months in fact was above his 2

now

- applicable Guidelines range of 120

- 150 month s

. In 2004, the district court 3
imposed Christie’s original sentence of 168 months
, which represented the low 4

end of his initial 168

- 210 month Guidelines range , and in April 2010, the district 5
court granted Christie’s first § 3582(c) motion to impose a sentence of 151 6
months, which again was at the bottom of his then

- applicable Guidelines range 7

of 151

- 188 months. There is no indication in the record as to why an above

8

Guidelines sentence is now called for , or why a comparable within

- Guidelines 9

sentence would now be inappropriate

. 10

Our conclusion that at least som e minimal statement of reasons for a court’s 11
action on a § 3582(c)(2) motion is required accords with the view of every other 12

Circuit to have addressed the issue. In United States v. Burrell , for example, the 13
Eighth Circuit vacated and remanded a resentencing decision where “ the record 14

[did] not allow [the court] to discern how the district court exercised its 15

discretion. ” 622 F.3d 961, 964 (8th Cir. 2010). The court found no “indication that 16
the district court adopted the reasoning in the Gove rnment’s response to [the 17

defendant’s] § 3582 motion,” and while there was little “doubt that the [district] 18

court read and considered [the defendant’s] motion and the Government’s 1914

response,” the Eighth Circuit nonetheless found “no explanation as to what the 1

court relied on to make its decision.” Id

. Similarly, the Seventh Circuit vacated 2

the district court’s denial of a motion for res entencing and remanded the case on 3
the ground that it was insufficient to provide a one

- sentence explanation stating 4

that “a sentence reduction is not appropriate

. ” United States v. Marion , 590 F.3d 5
475, 476 (7th Cir. 2009). The court reasoned that it was not inherently 6
problematic to use a form order or even to provide “only a one

- sentence 7
explanation” ; rather “ [ t ] he problem arises from the fact that it is impossible for 8

us to ensure that the district court did not abuse its discretion if the order shows 9
only that the district court e xercised its discretion rather than showing how it 10

exercised that discretion. ” Id . at 477

- 78 (emphasis in original). Accordingly, the 11

court concluded that “[s] ome minimal explanation is required. ” Id . at 478. See 12

also United States v. Ray , 420 F. App’x 497, 499 (6th Cir. 2011) (unpublished) 13
(vacating and remanding a district court’s form order denying defendant’s 14
motion for a reduced sentence, where “the court merely checked the ‘denied’ box 15

[and] filled in [the defendant’s] original sentencing informat ion”). 16

The Eleventh Circuit recently confronted a challenge to the use of the same 17

form order that the district court employed here: the November 2011 version of 18

AO 247

. See United States v. Frazier , 502 F. App’ x 863 (11th Cir. 2012) 1915

( unpublished per curiam)

. In Frazier , the district court had denied a motion for 1
resentencing using AO 247, but
, as in the instant case
, only the first page was 2

included in the record on appeal

. Id . at 864

- 65. Remand was ordered by the 3
Eleventh Circuit, and the district court then indicated that it had also completed 4
the second page of the form , but had filed it under seal. The Eleventh Circuit 5

again vacated the district court’s order. While noting that the “district court 6
recalculated the applicable guideline range,” the court concluded that it was 7

insufficient for the district court to summarily hold that “the factors in § 3553 8
weigh strongly against any reduction in [the defendant’s] 360 month sentence. ” 9

Id . at 866. This was “ i nsufficient to demonstrate that the district court properly 10
considered the § 3553(a) factors when it denied [the defendant’s] motion.” Id

. 11

The district court here did not provide a sufficient explanation of its decision 12

to retain a now above

- G uidelines sentence, despite twice sentencing Christie at 13
the bottom of his Guidelines range. See Burrell , 622 F.3d at 965 (vacating 14

resentencing order where defendant’s “amended sentence is at the top of his 15
amended range, but his initial sentence was near the middle of his guidelines 16
range” and noting that this lack of proportionality precludes the “ presum[p tion] 17
that the reasons given . . . at his initial sentencing apply with equal force to the 18
amended sentence”). 1916

Nothing in this opini on should be taken as implying any view on the merits 1
of Christie’s application for a sentencing reduction. The government raised 2
various objections to such a reduction, which the district court was required to 3
consider. After appropriate consideration of the sentencing factors under 18 4
U.S.C. § 3553(a), the district court may well identify cog ent reasons to deny the 5

request for a reduction . On the present record, however, we lack any 6
understanding of the reasoning underlying the district court’s decision, and 7
accordingly are unable to determine whether that decision was within the 8

bounds of the district court’s discretion. 4 9

CONCLUSION 10
For the foregoing reasons, the order of the d istrict c ourt is hereby 11

VACATED and REMANDED

. 12

4 Since Christie’s time served, as offset by any good conduct time he might have accumulated, may add up to more than the low end of his now

- applicable Guidelines range of 120

- 150 months, the passage of time will continue to diminish the p ossibility of his benefiting from a reduced sentence within his amended range
, should the district court decide that such a reduction is appropriate

. Therefore , we urge the district court to conduct the proceedings on remand as expeditiously as possible.